1. The statute of limitations is three years for personal injury cases.
According to Wisconsin Statute Section 893.54 the statute of limitations for a personal injury or wrongful death lawsuit is three years. As cited in Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 554, 335 N.W.2d 578, 580 (1983), the statute of limitations begins running when the injury is accrued. The court said, “Basically, there are three points in time when a tort claim may be said to accrue: (1) when negligence occurs, (2) when a resulting injury is sustained, and (3) when the injury is discovered.” (citing Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 759, 168 N.W.2d 177 (1969); Denzer v. Rouse, 48 Wis. 2d 528, 532, 180 N.W.2d 521 (1970)). Therefore, depending on the type of suit, the statute of limitations may begin at different times.
2. The discovery rule governs when the statute of limitations begins to run.
There is often confusion about when the statute of limitations begins to run in personal injury cases because of the three possible definitions of accrue. In 1983, the Wisconsin Supreme Court adopted the discovery rule in Hansen when a woman had an intrauterine device inserted into her uterus in May of 1974.Hansen, 113 Wis.2d at 552, 335 N.W.2d at 579. Four years later, Hansen began experiencing problems that ultimately related back to the insertion of the intrauterine device years earlier. Id. When the problems persisted for a couple weeks, Hansen sought medical attention. Id. After visits on June 13 and June 16, 1978 the doctor did not find anything wrong.Id. at 552-553, 335 N.W.2d at 579. When the symptoms continued for another ten days, she returned to the doctor who concluded she had pelvic inflammatory disease and removed the intrauterine device. Id. at 553, 335 N.W.2d at 579. Although Hansen eventually recovered from the disease, she suffered permanent damage to her fallopian tubes, rendering her sterile. Id.
Hansen filed suit June 24, 1981 and the court originally dismissed the claim saying the statute of limitations had run. Id. In cases like this one, the statute of limitations may lead to harsh results if Hansen could not recover since the injury technically accrued when she had the surgery. Id. at 555-556, 335 N.W.2d at 580-581. Therefore, the court adopted the discovery rule which said “a claim does not accrue until the injury is discovered or in the exercise of reasonable diligence should be discovered.” Id. at 556, 335 N.W.2d at 581. The court concluded that Hansen’s claim accrued on June 26, 1978 when the doctor diagnosed her with the disease and therefore her complaint filed on June 24, 1981 was timely because it was within three years of the discovery of her injury. Id. at 561, 335 N.W.2d at 583.
3. Discovery of an injury includes actual discovery or when an injury should have been discovered with due diligence.
A major interest of the court is to avoid wasting resources on frivolous lawsuits or lawsuits that are so old that it would be almost impossible litigate the action. The court included protective wording into the discovery rule because it wanted to bar “claimants who negligently or purposely fail to file a timely claim.” 559, 582. In the Hansen case, she used due diligence to discover her injury when she repeatedly sought medical attention for the persistent symptoms he suffered. 561, 583
As easy as these steps may be to remembering the statute of limitations for personal injury cases, there is an exception. The discovery rule does not apply to any professional negligence cases. For example, cases involving doctors or lawyers are subject to a different standard. For more information regarding professional negligence, the Milwaukee personal injury attorneys at Murphy & Prachthauser.